“数额犯”的未遂困局及破解——以合同诈骗罪为例

The Dilemma of the Attempted Crime of Amount and Its Solution——Take the Contract Fraud as an Example

数额犯的未遂问题是我国刑法学界传统争端之一,理论上的争论不休与司法解释立场的摇摆不定导致了数额犯未遂问题司法实践的混乱局面,而多年来学者们试图破解此困局的努力层出不穷,却使争端愈演愈烈,数额犯未遂问题的司法实践做法更难统一标准。究其根本原因,数额实质上是社会危害性“量”的体现,是我国刑法“定罪+定量”的立法模式所带来的弊端,数额虽存在一定的作用,但其功未能抵其过,我国刑法条文中关于数额的规定应逐渐被废除。

The issue of attempted crime of amount is one of the traditional disputes in the criminal jurisprudence in our country. The dispute in theory and the rocking of the judicial interpretation position have led to the confusion in judicial practice, and efforts of scholars to try to solve this predicament have been made repeatedly for many years, but the dispute has become more and more intense, and in judicial practice no unified standard has been reached. The basic reason is that the amount is essentially the embodiment of the "quantity" of the social harmfulness. This is the disadvantage brought about by the legislative mode of "conviction + quantification" in China's criminal law. Although the amount plays a certain role, it cannot offset the fault. Therefore, the provision of amount in the criminal law of our country should be abolished gradually.